“Revolutionary new technologies and ideas don’t come from people with a reverence for following the rules. They come from iconoclasts like Jobs, Wozniak, and Swartz.”

This is the conclusion of a post (by Tim Lee) extolling the “Americanness” of Aaron Swartz, who killed himself last week. Despite the fact that my particular interest in Swartz arises from his founding of Demand Progress and his anti-SOPA advocacy (neither of which I’m fond of), my diatribe against this rhetoric must be preceded by a recognition of Swartz’s earnestness and intelligence. His blog includes some very thoughtful posts about personal development. (Although I maintain that there’s nothing persuasive in his political writings.)

But Tim Lee called him a hero, and implied that he was more American than most Americans (or at least, than those Americans who don’t download free movies…he may have a point) and that he was an iconoclast.

The word hero is dangerous, a tool of the warlike ideologies that periodically convulse our nation and politics. I cringe to see it used in a newspaper’s opinion pages. Newspapers are supposed to be more civilized: By a quirk of the business of mass communications, they once found a business incentive for pacific objectivity. Swartz himself disdained this pacific objectivity, longing for the days when men duelled and privately published their own partisan views.

But surely, even if the cyber-ideologues have defeated the pax literalis in newspapers, a hundred years of disarming postmodernism, ironism, and other literary trends should have been more than enough to deflate this kind of primitive rhetoric? I do not wish to expound on the works of Derrida to show the epistemic necessity of a less primitive view, but perhaps I could simply encourage people like Lee to, well, read more newspapers!

But he tells us that Swartz’s heroism, and his essential value as an American, came of his unruliness (he is using language from Paul Graham’s essay on the essential Americanness of hackers), and groups him with Jobs and Wozniak of Apple fame as iconoclasts. This is because Jobs and Wozniak devised a “blue box” which tricked the phone system into giving them free calls. They were hackers.

But it’s doubtful there was much ideology in their tinkering with the phone system: they were just tinkering. And it’s fairly certain that the ideology that inspired Swartz to take up arms was not close to Jobs’s heart: Jobs had an especially passionate hatred for Google because of what he perceived as Google’s theft of design elements from the iPhone. “Isaacson wrote that he never saw Jobs angrier in any of their conversations, which covered a wide variety of emotional topics during a two-year period,” an article about Jobs’s hatred of Google as portrayed in Isaacson’s biography says.

Moreover, Jobs was far from an iconoclast: he was an icon! Not only that, but his business was in important ways built on icons. It was Jobs who approved the “Think Different” campaign, which sold Apple’s computers by linking them almost mythically with a host of icons, from the Dalai Lama to Gandhi.

But the myth of the unruly geniuses on its own deserves some attention. Lee adopts this wholly and uncritically from Paul Graham’s essay, so I will examine a few claims from that. Graham writes:

There is such a thing as Americanness. There’s nothing like living abroad to teach you that. And if you want to know whether something will nurture or squash this quality, it would be hard to find a better focus group than hackers, because they come closest of any group I know to embodying it.

A hacker, as the term is used by Graham, is not just a computer hacker. He is using the term in a larger, but idiosyncratic sense:

Hacking predates computers. When he was working on the Manhattan Project, Richard Feynman used to amuse himself by breaking into safes containing secret documents. This tradition continues today. When we were in grad school, a hacker friend of mine who spent too much time around MIT had his own lock picking kit.

Graham communicates by elliptical suggestions and associations, so in order to gain a complete understanding of his sense of hacker, you have to read his further anecdotes about good programmers who do things their own way and take things apart to figure out how best to do things. What he means is that the most valuable engineers are people who must be allowed to take things apart and subvert systems in order to be creative.

His choice of Richard Feynman is significant, as Feynman is one of the most American physicists to become internationally renowned (unlike Oppenheimer, Feynman was educated in the States and came from a modest New York family). And Feynman was a tinkerer, a bit of a hacker.

But if you consider the example of the Manhattan Project further, the idea that Americanness as the defining quality of the hacker confers some unique creative power on American engineers or physicists falls apart. Feynman was there, yes, he was noted for his brilliance. But most of the work on the atomic bomb and hydrogen bomb was done by Europeans! Enrico Fermi, John Von Neumann, Einstein, Edward Teller–all Europeans! J. Oppenheimer was clearly one of the most important minds behind the atomic bomb, and he was an American, but even he was educated overseas, at Cambridge.

America seems to hold a long-lasting advantage in innovation, but saying that it is because of “Americanness” is as silly as it is circular, and saying that it is because of iconoclasm betrays a total ignorance of the way Americans think and act.

According to a Times story from this week, another convicted felon has been shown almost certainly innocent by DNA evidence. “Convicted of robbing and raping an 83-year-old woman, Joseph A. Buffey at 19 … was sentenced to 70 years in the maximum security prison here in southern West Virginia.”

District attorneys continue to resist reopening cases for consideration of DNA evidence. This is understandable: the more doubt there is about the verdicts courts have reached, the less confident victims and their families will be that justice has been served and the less effective the system will be at deterring crime. At an extreme, convicted felons could appear to be the unlucky victims of a blind and random process.

They often are the victims of a blind and random process.

The felon in question was convicted on the strength of his confession. Perhaps the fact that he was “a marijuana smoker and high school dropout” also had something to do with it. To a certain kind of juror, the distance between smoking a joint and forcibly sodomizing an 83-year-old woman is not that great.

1587. Source: Wikipedia, “Witchcraft”

To me, all of these considerations point to the extraordinary flaws in the way criminal cases are tried. The issue of the character of the defendant hardly needs much discussion; it should be plain that, while some real relationship between certain traits such as schizophrenia and certain violent behaviors probably can be found, your average juror is not the person to find them.

The confession is just as much a problem, but perhaps this deserves more discussion. It seems clear to me that confessions should not be admissible evidence. They should not be admissible for the very reason that they seem to be strong evidence. But are they really?

I think the question was answered with some finality by the Duke of Brunswick in the 17th century. Europe was at that time still crazed with a fear of witches, and busy burning them. Many of these witches had confessed. From Charles Mackay’s Memoirs of Extraordinary Popular Delusionsand the Madness of Crowds we have these:

The rack was displayed, and the two poor creatures extended upon it. In reply to various leading questions from their tormentors, they owned, in their agony, that they were in the constant habit of meeting the devil, that they had sold their souls to him, and that at their command he had raised the tempest. (1487)

In 1571, the celebrated sorcerer, Trois Echelles, was burned in the Place de Grêve, in Paris. He confessed, in the presence of Charles IX, and of the Marshals de Montmorency, De Retz, and the Sieur du Mazille, physician to the King, that he could perform the most wonderful things by the aid of a devil to whom he had sold himself. He described at great length the saturnalia of the fiends—the sacrifices which they offered up—the debaucheries they committed with the young and handsome witches, and the various modes of preparing the infernal unguent for blighting cattle.

Gilles Garnier was put to the rack, after fifty witnesses had deposed against him: he confessed everything that was laid to his charge.

This was the state of criminal justice, as it were, that the Duke of Brunswick encountered. Mackay writes of him:

It is related of the Duke of Brunswick that he invited two learned Jesuits to his house, who were known to entertain strong opinions upon the subject of witchcraft, with a view of showing them the cruelty and absurdity of such practises. A woman lay in the dungeon of the city accused of witchcraft, and the Duke, having given previous instructions to the officiating torturers, went with the two Jesuits to hear her confession. By a series of artful leading questions, the poor creature, in the extremity of her anguish, was induced to confess that she had often attended the sabbath of the fiends upon the Brocken—that she had seen two Jesuits there, who had made themselves notorious, even among witches, for their abominations—that she had seen them assume the form of goats, wolves, and other animals; and that many noted witches had borne them five, six, and seven children at a birth, who had heads like toads and legs like spiders. Being asked if the Jesuits were far from her, she replied that they were in the room beside her.

The Duke of Brunswick led his astounded friends away, and explained the stratagem. This was convincing proof to both of them that thousands of persons had suffered unjustly; they knew their own innocence, and shuddered to think what their fate might have been, if an enemy, instead of a friend, had put such a confession into the mouth of a criminal. One of these Jesuits was Frederick Spee, the author of the Cautio Criminalis, published in 1631. This work, exposing the horrors of the witch trials, had a most salutary effect in Germany: Schonbrunn, Archbishop and Elector of Menz, abolished the torture entirely within his dominions, and his example was imitated by the Duke of Brunswick and other potentates.

It will be objected that present-day prosecutors do not use the rack. But they do use pressure, and that should be enough to contaminate the whole enterprise. We know empirically that confessions are unreliable, and we know that pressure (in addition to other psychological factors) can lead to false confessions. In what way are confessions evidence then?

But there is a more general problem, the profound unreliability of the judgment of those deciding the case–both the judges at the bench and the jurors. A recent study showed that judges are more and more likely to deny prisoners’ requests as they become more fatigued. A prisoner requesting parole will have the most luck if he is heard by the judge right after the judge’s break. This is a consequence of the fact that the human mind is simply not well-suited to tasks like deciding a person’s guilt or a person’s probability of committing crime. If a judge, a professional at making these decisions, is hardly competent to make them, what of a juror?

Trial by jury

The virtues of trial by jury are so fundamental that the framers of the constitution felt no need to state them. Alexander Hamilton wrote in The Federalist Paper #83:

It would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defence against the oppressions of an hereditary monarch, than as a barrier to the tyranny of the popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty.

This is true; the system of trial by jury is a great benefit to a Democratic society.

But it would be a mistake to conclude, as many do, that it is similarly beneficial to the individual defendant. Trial by jury protects the system from hereditary monarchs, and protects individual freedom fighters from persecution by monarchs, but in the more usual run of criminal cases, persecution by monarchs is not the main concern of your average defendant. Your average defendant has more to fear from the prejudices of jurors.

If you watch this YouTube video and pay attention to the juxtaposition of the juror’s reasoning about her verdict in the Rodney King case and the main piece of evidence in the trial, the video of four police officers beating the fallen King for 15 minutes, you will have to wonder what really motivated the juror’s decision. In this case, of course, the defendants were the police officers, and if prejudice was involved, the white police officers mostly benefited from it. Another case in which the jury was popularly suspected of being swayed by race was the O.J. Simpson trial.

In Oliver Wendell Holmes Jr.’s discussion of murder cases (in The Common Law), he shows that in order to determine whether an act that resulted in death was really murder or was manslaughter, we need to have some idea of the probability, given what the defendant knew, that the act would result in a death. It is the beginning of an acknowledgement of the epistemic limitations in which all parties are working. But even if it is only a beginning, it is strong: an implication of this consideration is that not even the defendant necessarily knows whether he is guilty of murder!

But Holmes points to a superior way of navigating this epistemic darkness: probability. In Holmes’s day, there could not have been sufficient data to make exact calculations of probabilities useful to a courtroom, but that is no longer the case. What is more, we may have the algorithmic tools to put them to excellent use.

In Thinking Fast and Slow, Daniel Kahneman extols the superiority of algorithms over human judgment for deciding everything from the prognosis of a cancer to the relative values of vintages of wine (see the chapter “Intuition versus Formulas”). Simple numerical algorithms yield more accurate results consistently. Why should the same thing not be true of the guilt or innocence of a defendant? Of course, there can be no single algorithm that could handle the multiple dimensions of an actual criminal case. But it may be possible to build a software package that could reliably put confidence intervals on a defendant’s guilt.

A juror’s job would then be one of quality assurance: A jury would hear several cases, and be given the probability of guilt in each case. The jury would then perform its constitutional duty of ensuring that the government was not corrupt by confirming that the estimates showed no political bias.

In an opinion piece in the New York Times, Carolyn Chen, a professor at Northwestern, argues that Ivy League Schools are not admitting enough Asian Americans. Asian Americans are, she acknowledges, overrepresented at Ivy League schools, just not enough.

Asian-Americans constitute 5.6 percent of the nation’s population but 12 to 18 percent of the student body at Ivy League schools. But if judged on their merits — grades, test scores, academic honors and extracurricular activities — Asian-Americans are underrepresented at these schools. *

What is the problem?

Debates about affirmative action and other admissions policies usually take into account two concerns: the rights of applicants (or fairness) and recruiting students who will learn from each other as well as from the curriculum. Most of the arguments against affirmative action are motivated by the former: they say that affirmative action is unfair and a violation of applicants’ rights. Chen’s only explicit comment on why it is a problem that Asians are not more overrepresented in Ivy League colleges comes at the end of her article, and seems to be an afterthought (I will address it specifically later). But a concern with fairness seems implicit throughout her article, which begins with the observation: “If you are Asian, your chances of getting into the most selective colleges and universities will almost certainly be lower than if you are white.”

But the kind of fairness advocated by the opponents of affirmative action and by Chen is superficial and weak. Chen is worried that colleges are using ethnicity as a criterion, but it is no less unfair that they are using intelligence (in the form of standardized test scores). It is well established that intelligence is more than 40% heritable and possibly as much as 70% heritable. This means that when schools select smart kids, they are selecting kids who won a genetic lottery. There is also reason to believe that conscientiousness is largely heritable, so when we pat someone on the back for being hardworking, we are rewarding him at least in part for his genetic endowment. Life and academia pile rewards on those whom nature has already rewarded; race-based admission is no more unfair than talent-based admission. As Peter Singer wrote in Practical Ethics:

So equality of opportunity is not an attractive ideal. It rewards the lucky, who inherit those abilities that allow them to pursue interesting and lucrative careers. It penalizes the unlucky, whose genes make it very hard for them to achieve similar success.

However, Chen’s explicitly stated concern (the afterthought) about the under-overrepresentation of Asians in Ivy League schools is more pragmatic, and more deserving of serious discussion: “If our most renowned schools set implicit quotas for high-achieving Asian-Americans, we are sending a message to all students that hard work and good grades may be a fool’s errand.”

That is, meritocracy provides an incentive to hard work and better performance.

This is almost certainly true, and it is one of the most important principles of political and economic philosophy. But there is no sign that affirmative action is discouraging whites or Asians from pursuing scholastic achievement, and it is also not leading to any decline in affluence of these groups. In fact, Asians have the highest median income of any ethnic group in America. (This is why I am inclined to think of any difference in admission standards between whites and Asians as affirmative action: Asians occupy a similar position with respect to whites as whites occupy with respect to blacks and Latinos.) Hard work and intelligence are very strongly rewarded by the academic system and by the workplace, even in the presence of affirmative action.

Racism, ethnocentrism, and paranoia

Chen makes powerful comparisons to the Jewish quotas of the early twentieth century.

In the 1920s, people asked: will Harvard still be Harvard with so many Jews? Today we ask: will Harvard still be Harvard with so many Asians?

The comparison is misleading, though. In the years between World War I and World War II, antisemitism was rampant in the West, and even the U.S., which had traditionally been viewed as highly tolerant of Jews, was swept with antisemitism. In the 1910s and 1920s, it was possible for Ford to say publicly: “here the Jew is a threat” and to print 500,000 copies of the Protocols of the Elders of Zion. There is currently no such agitation against Asian Americans. At worst, people think they’re a little shy.

Exploring the dimensions of what she perceives as racial paranoia, Chen goes on to ask:

Yale’s student population is 58 percent white and 18 percent Asian. Would it be such a calamity if those numbers were reversed?

The answer is: It depends on who we’re thinking of. For whites, obviously, absolutely not. It would hardly make a difference. For Yale I suspect it would be a blow. Yale would be identified with a segment of society that makes up a small, affluent slice of society. At present, it at least appears to be more of a reflection of America. For Asian Americans, I think it would be worse. The most successful–the ones at Yale–would have less interaction with whites, whose large numbers in America’s workforce and populace make them important.

Some concluding thoughts

The supposed Asian quota is a slightly different issue from affirmative action in this respect: If it is true that the real merits of many Asian American applicants are being disregarded by Ivy League schools for reasons of race, the Ivy League should eventually be the worse for it. Going to New York University instead of the Ivy League did not prevent Jonas Salk from curing polio in the days of the Jewish quotas, and one of today’s prestigious schools–Brandeis–was founded in response to the quotas. Perhaps (and I do mean perhaps — I am skeptical that the situation with Asian Americans bears any resemblance to the situation with Jews in the ’20s) … perhaps it is time to consider founding an elite school that has no Asian quota.

*Chen, Carolyn. “Asians: Too Smart for Their Own Good?” New York Times. 19 December 2012

I’m a writer and editor interested in how to live, both as an individual and as a part of the community. I specialize in writing and editing educational materials, and I am interested in both childhood and adult education. But I am a student of the social sciences generally, and ... Continue reading →